Osborn v. Chandeysson Elec. Co., 42521
| Decision Date | 12 May 1952 |
| Docket Number | No. 42521,No. 2,42521,2 |
| Citation | 248 S.W.2d 657 |
| Parties | OSBORN v. CHANDEYSSON ELECTRIC CO |
| Court | Missouri Supreme Court |
J. L. London, St. Louis, for appellant.
R. Forder Buckley, E. C. Friedewald, St. Louis, for respondent.
BOHLING, Commissioner.
Charles F. Osborn sued Chandeysson Electric Company, a corporation, of St. Louis, Missouri, for damages arising out of a contract of employment culminating in an alleged agreement wherein, as part of the consideration, the defendant agreed to assign to plaintiff 150 shares of its capital stock. Plaintiff's petition was in two counts and plaintiff states the first count was for conversion of the stock and the second count was for breach of contract. (We refer to the parties as designated in the trial court.) The suit was filed February 11, 1941. Plaintiff was in the Armed Services during World War II and the trial was had in October, 1950. The jury returned a verdict for defendant on the first count and for plaintiff on the second count, awarding plaintiff $26,550 damages--$15,000 for the value of the stock, admitted to be $100 a share, and $11,550 interest. Defendant's motion for new trial was sustained. Plaintiff appealed. The issues presented embrace the submissibility of plaintiff's case on each count, the propriety of plaintiff's two verdict directing instructions, whether the verdicts on Count II and on Count I are inconsistent, and whether plaintiff should have been required to elect on which count he would proceed to the jury, grounds sustained in the order granting a new trial.
Plaintiff's father, Joseph A. Osborn, and Dr. Pierre J. Chandeysson had been friends for fifty years and plaintiff had known Dr. Chandeysson from boyhood. Dr. Chandeysson started an electrical manufacturing business in 1902 and in 1919 incorporated the Chandeysson Electric Company. The company manufactures electro-plating motor generating sets. Dr. Chandeysson was President of the company and owned practically all of its stock. In 1919 plaintiff, then about 19 years old, worked for the company for several months. Plaintiff testified that when he informed Dr. Chandeysson he had another job, Dr. Chandeysson stated it would be a good thing to get experience in other electrical lines and after plaintiff had gained experience he would be glad to have him come back to work for him. Dr. Chandeysson did not recall this conversation. Plaintiff gained experience in electrical engineering work. He went to work for the Ralston Purina Company as an electrical engineer in 1927 at $250 a month and received salary raises up to $325 a month, but the business depression of the 1930s resulted in his earnings falling to $225 a month.
Plaintiff testified that on several occasions Dr. Chandeysson, who was a bachelor, told plaintiff he was alone in the world, had built up his business, did not have anyone to carry on, and wanted someone he could train to carry on his business when he retired, and talked to plaintiff about doing this. A day or two before Christmas in 1934, Miss Adele Swenson (later Mrs. Chandeysson) and Dr. Chandeysson were at plaintiff's home, and, while the men were when he could get things straighteened out when he could get things straightened out to work for him, stating that he had work for plaintiff, definite duties, and would direct plaintiff what to do; that if plaintiff were going to work for him, it would have to be then; that, in lieu of increasing his salary, 'I will assign to you a substantial interest in the Chandeysson Electric Company.' Plaintiff told Dr. Chandeysson he thought this would be a good thing for him, but he was in charge of important work for the Ralston company and would have to give them notice.
Plaintiff next saw Dr. Chandeysson in early January, 1935. Dr. Chandeysson wanted to talk the matter over with plaintiff's father as he realized plaintiff had been working for the Ralston company for about nine years and it was an important step for plaintiff. The three made arrangements to meet at Bevo Mill. At that meeting, according to plaintiff, Dr. Chandeysson stated he knew the work plaintiff had been doing and there was no question in his mind that, if plaintiff followed his instructions, plaintiff would make good and some day be able to take over and assist him and run the company after he retired. Plaintiff testified: 'Dr. Chandeysson told me he would pay me the same as Ralston Purina and in every conversation that he would assign to me a very substantial amount of Chandeysson Electric stock.' Dr. Chandeysson did not say when or how much stock would be assigned or what plaintiff would have to do to be entitled to the stock.
Joseph A. Osborn, plaintiff's father, testified that at the Bevo Mill meeting: ; and otherwise fully corroborated plaintiff's testimony on the Bevo Mill meeting.
Dr. Chandeysson was 75 years of age at the time of trial. His version differed from that of plaintiff and plaintiff's father. He testified, with respect to the material facts that plaintiff informed witness (he thought in September, 1934) he had given the Ralston company notice and 'tackled me for a job'; that witness never at any time or place made the statements attributed to him by plaintiff or plaintiff's father; that he called Mr. Osborn, Sr., to have lunch with them at the Bevo Mill because he had decided to give his son a try, and told the father they had been friends a long time and he was taking a chance of losing his friendship by employing plaintiff, for if plaintiff did not make good it would be the end of their friendship, and if he did make good everything would be all right, and that was the reason for the father's presence.
Plaintiff went to work for the Chandeysson Electric Company on March 1, 1935, after giving the Ralston company notice of his intention to quit. Plaintiff's salary was $225 a month and in December, 1935, he was given a raise of $25 a month and a bonus of $250. We need not detail his services. According to plaintiff he performed his part of the contract until his discharge hereinafter mentioned.
Plaintiff testified that he was in Dr. Chandeysson's office about two weeks before Christmas, 1936, and Dr. Chandeysson had a stock book on his desk, and said: "Charlie, I am assigning to you 150 shares of Chandeysson Electric Company stock.' He always used I. He was the company.' Plaintiff thanked him. Mr. C. A. Henneke was Vice-President, and Mr. C. E. Pfeiffer was Secretary and Treasurer of the company, and, with Dr. Chandeysson, constituted the Board of Directors. Dr. Chandeysson then called in Mr. Henneke and Mr. Pfeiffer and told them: 'I have assigned 150 shares of stock to Charlie'; and in the absence of one of the others, plaintiff was to act on the Board of Directors. Plaintiff testified that he had faith in Dr. Chandeysson and never personally asked or made demand for the stock certificate.
Dr. Chandeysson denied that he ever told plaintiff he was assigning 150 shares of the stock to plaintiff, and the testimoiny of Mr. Henneke and Mr. Pfeiffer corroborated Dr. Chandeysson.
On the day before Christmas, 1936, Dr. Chandeysson handed plaintiff a check, stating: 'Here's a bonus check for $1,800 to augment your salary.'
Plaintiff testified that on December 31, 1936, Dr. Chandeysson, while in his office, gave plaintiff another check, stating: 'Here is a five per cent dividend on 150 shares of Chandeysson Electric Company stock.' The check was dated December 31, 1936, payable to Charles F. Osborn in the amount of $750, and was stamped 'Dividend Check.' Dr. Chandeysson testified he handed this check to plaintiff, but denied stating: 'This is the dividend on the 150 shares of stock which I have assigned to you.'
Mr. Pfeiffer, Secretary of the compnay, testified that a meeting of the Board of Directors was held December 18, 1936, and the minutes were written up and dated December 31, 1936. These minutes disclose that the meeting was for the purpose of approving the issuance of dividend checks to certain persons who were nonstockholders but potentially valuable to the company in 'good will' and that 'because the Internal Revenue might object to the outlay as not a justifiable deduction, Mr. Chandeysson had made the disbursement out of the dividend account.'
Miss Dolores Bundschuh, the bookkeeper, testified she made out the 'dividend checks' from a list handed her by Dr. Chandeysson; that there were 34 checks in number, and 11 dividend checks were issued to stockholders and 23 dividend checks were issued to nonstockholders; that the $8,000 in dividends going to nonstockholders were taken from 'Miss Swenson's' share of the dividends; and she stamped each check 'Dividend Check' under Dr. Chandeysson's instructions. Plaintiff's name was on the list handed Miss Bundschuh as follows: '150 Osborne 750.'
The Chandeysson Electric Company reported on income tax forms to the United States Treasury Department and to the State of Missouri that it had paid plaintiff in the year 1936 $4,800 in salary and $750 in dividends.
In December, 1936, the first trouble developed between Dr. Chandeysson and plaintiff, and on August 14, 1937, Dr. Chandeysson objected to items of a few dollars for railroad and pullman fare on a trip to Chicago (St. Louis-Chicago) appearing in one of plaintiff's expense accounts, and, according to plaintiff, he was discharged.
Dr. Chandeysson testified that he did not discharge plaintiff.
Thereafter and prior to suit, demand was made on plaintiff's behalf for the delivery of the 150 shares of stock.
Miss Bundschuh testified that in December, 1936, the stockholders of record were: Adele Chandeysson, 2,100 shares, Dr. Chandeysson,...
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